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NAVY | DRB | 2006_Navy | ND0600641
Original file (ND0600641.rtf) Auto-classification: Denied
ex-AMEAA, USN
ND06-00641
Current Discharge and Applicant’s Request
Application Received: 20060410   Characterization Received:
Narrative Reason: PATTERN OF MISCONDUCT                   Authority: MILPERSMAN 3640370.1b

 Applicant’s Request:      Characterization change to:
                           Narrative Reason change :
Applicant’s Issues:       1. Character ization of service is unduly harsh based on service record.
                           2. Post service – Employed, no criminal activity.
                          

Decision

 By a vote of the Characterization shall .
 By a vote of the Narrative Reason shall PATTERN OF MISCONDUCT .
Date: 20 071101            Location: Washington D.C R epresentation : American Legion

Discussion

 Issue 1 ( ): The Applicant contends that his discharge was unduly harsh based upon his service record and work performance. Based upon the record and testimony of the Applicant , nothing indicates that the Applicant’s discharge was in any way inconsistent with the standards of discipline in the United States Navy. A general (under honorable conditions) characterization of service is warranted when significant negative aspects of a member’s conduct or performance of duty outweigh the positive aspects of the member’s military record. The Applicant’s service was marred by four nonjudicial punishment proceedings for violations of UCMJ Articles 86 (unauthorized absence , 3 specifications ), 91 (insubordinate conduct , 2 specifications ), and 92 ( failure to obey, 2 specifications ) a s well as a retention warning. These Nonjudicial punishments form the basis for the Applicants administrative discharge based on a pattern of misconduct which is defined as two or more nonjudicial punishments during the same enlistment. The Applicant’s conduct, which forms the primary basis for determini ng the character ization of his service reflects his willful failure to meet the requirements of his contract with the U.S. Navy and falls short of that required for an upgrade .

Issue 2 ( ): The NDRB is authorized to consider post-service factors in the recharacterization of a discharge. However, there is no law or regulation which provides that an unfavorable discharge may be upgraded based solely on the passage of time or good conduct in the civilian life subsequent to leaving the service. Normally, to permit relief a procedural impropriety or inequity must have been found to have existed during the period of enlistment in question. Outstanding post-service conduct to the extent that such matters provide a basis for a more thorough understanding of the Applicant’s performance and conduct during the period of service under review, is considered. The Applicant provided documentation of his continuous employment since leaving the service and state d that he regularly pays child support in support of his request for post service consideration . The Board determined that the documentation provided by the Applicant did not mitigate the misconduct which resulted in the Applicant’s discharge and the characterization of his service.

In reviewing discharges, the Board presumes regularity in the conduct of Government affairs unless there is substantial credible evidence ( to include evidence submitted by the Applicant ) to rebut the presumption. After a thorough review of the available evidence, to include the Applicant’s s ummary of s ervice, m edical and s ervice r ecord e ntries, d ischarge p rocess and evidence submitted by the Applicant, the Board found that



Summary of Service

Prior Service:
 Inactive: US N R (DEP)      19900328 - 19900904
Period of Service Under Review:
 Date of Enlistment: 19900905      Years Contracted :        Date of Discharge: 19940624
Length of Service : 03 Yrs 09 Mths 19 D ys                            Lost Time :
Education Level:         Age at Enlistment:       AFQT: 76          Highest Rank /Rate : AMEAN
Evaluation marks (# of occasions):       Performance: 3.7          Behavior: 3.5    OTA: 3.73 (3)
Awards and Decorations ( per DD 214): NATIONAL DEFENSE SERVICE MEDAL, SEA SERVICE DEPLOYMENT RIBBON W/STAR, SOUTHWEST ASIA SERVICE MEDAL (THIRD CAMPAIGN), EXPERT PISTOL QUALIFICATION 38 & 45 CAL., EXPERT RIFLE QUALIFICATION M-14


Medical/Service Record Entries Related to Characterization of Service or Basis for Discharge

 19920708 :        CO's NJP - Viol UCMJ Art. 91 (d isrespect ful in language ) and Art. 92 (disobey a lawful order ) .
         Awarded - FOP ($300.00 ); RIR ( E-1 )

19920824:        Retention Warning for failure to obey lawful order.

19920827 :        CO's NJP -Viol UCMJ Art. 91 (d isrespectful in language ) .
         Awarded - FOP ( $390.00 for 2 months); RIR ( E-1 ).
19930318 :        CO's NJP - Viol UCMJ Art. 92 (p ossession of a dangerous weapon ) .
         Awarded - FOP ( $407.00 for 2 months); Restr for ( 60 days).
19940228 :        CO's NJP - Viol UCMJ Art. 86 ( unauthorized absence, 3 specs) .
         Awarded - CCU for 30 days, FOP ( $467.00 for 2 months) .

19980617:        NDRB review resulted in no change.


Discharge Process

 Date Notified:                                       19940307
Reason for Discharge:     -
        
Least Favorable Characterization:        UNDER OTHER THAN HONORABLE CONDITIONS

Date Applicant Responded to Notification:                  19940307
Rights Elected at Notification:
         Consult with Counsel                      
         Obtain Copies of Documents               
         Submit Statement(s) (date)                         ELECTED
         Administrative Board                       
        
Administrative Board Date :       19940405
Findings, by preponderance of the evidence:    
         BY - .
          BY - .
          BY - .
          BY SEPARATION WARRANTED.
 Recommendation on Separation:   BY

Commanding Officer Recommendation (date):        ( 19940418 )
 Chief of Naval Operations        ( 19940518 )
 Separation Authority (date):     Asst Sec of Navy (M&RA) (19940603)
Reason for discharge directed:  -
Characterization directed:     
Date Applicant Discharged:       19940624


Types of Documents Submitted by Applicant and Considered By Board

 Related to Military Service:      Service and/or Medical Record:            Other Records:

Related to Post-Service Period:         
         Employment:                        Finances:                          Education:               
         Health/Medical Records:                   Substance Abuse:                           Criminal Records:       
         Family/Personal Status:                   Community Service:                References:              
        
Additional Statements From Applicant:    From Representative:
Other Documentation (Describe)


Personal Appearance Hearings

NDRB Documentary Review Conducted (date):        19980617
NDRB Documentary Review Docket Number:   ND97-01195
NDRB Documentary Review Findings:                 No change warranted.

Applicant Testified:             
Applicant Available for Questions:
Witnesses:                         None
Observers:                         None
Pertinent Regulation/Law

 A. Naval Military Personnel Manual, (NAVPERS 15560C, Change 5, effective 05 Mar 93 until 21 Jul 94), Article 3630600, SEPARATION OF ENLISTED PERSONNEL BY REASON OF MISCONDUCT - A PATTERN OF MISCONDUCT.

B. Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part II, Para 211, Regularity of Government Affairs , Part V, Para 502, Propriety and Para 503, Equity .


ADDENDUM: Information for the Applicant

 Complaint Procedures : If you believe that the decision in your case is unclear, not responsive to the issues you raised, or does not otherwise comport with the decisional document requirements of DoD Instruction 1332.28, you may submit a complaint in accordance with Enclosure (5) of that Instruction to the Joint Service Review Activity , OUSD (P&R) PI-LP , The Pentagon , Washington, DC 20301-4000 . You should read Enclosure (5) of the Instruction before submitting such a complaint. The complaint procedure does not permit a challenge of the merits of the decision; it is designed solely to ensure that the decisional documents meet applicable requirements for clarity and responsiveness. You may view DoD Instruction 1332.28 and other Decisional Documents by going online at “ http://Boards.law.af.mil . ”

Additional Reviews : Subsequent to a document review, former members are eligible for a personal appearance hearing, provi ded the application is received at the NDRB within 15 years from the date of discharge. The Applicant can provide documentation to support any claims of post-service accomplishments or any additional evidence related to this discharge. Representation at a personal appearance hearing is recommended but not required. If a former member has been discharged for more than 15 years , has already been grante d a personal appearance hearing or has otherwise exhausted his opportunities before the NDRB, the Applicant may petition the Board for Correction of Naval Records (BCNR), 2 Navy Annex, Washington, DC 20370-5100 for further review.

 Service Benefits: The Veterans Administration determines eligibility for post-service benefits, not the Naval Discharge Review Board. There is no requirement or law that grants recharacterization solely on the issue of obtaining Veterans' benefits and this issue does not serve to provide a foundation upon which the Board can grant relief.
Employmen t / Educational Opportunities : The Board has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities. Regulations limit the Board’s review to a determination of the propriety and equity of the discharge.

Reenlistment/RE-code: Since the NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy, Marine Corps, or any other of the Armed Forces, the NDRB is not authorized to change a reenlistment code. Only the Board for Correction of Naval Records (BCNR) can make changes to reenlistment codes. Additionally, the Board has no authority to upgrade a discharge for the sole purpose of enhancing reenlistment opportunities. An unfavorable “RE” code is, in itself, not a bar to reenlistment. A request for a waiver can be submitted during the processing of a formal application for reenlistment through a recruiter.
Medical Conditions and Misconduct : DoD disability regulations do not preclude a disciplinary separation. Appropriate regulations stipulate that separations for misconduct take precedence over potential separations for other reasons. Whenever a member is being processed through the Physical Evaluation Board, and subsequently is processed for an administrative involuntary separation for misconduct, the disability evaluation is suspended. The Physical Evaluation Board case remains in suspense pending the outcome of the non-disability proceedings. If the action includes either a punitive or administrative discharge for misconduct, the medical board report is filed in the member’s terminated health record. Additionally, the NDRB does not have the authority to change a narrative reason for separation to one indicating a medical disability or “PTSD . ” Only the Board for Correction of Naval Records can grant this type of narrative reason change.

Automatic Upgrades - There is no law or regulation, which provides that an unfavorable discharge may be upgraded based solely on the passage of time or good conduct in civilian life subsequent to leaving Naval service. The NDRB is authorized to consider post-service factors in the recharacterization of a discharge to the extent such matters provide a basis for a more thorough understanding of the Applicant’s performance and conduct during the period of service under review. Examples of documentation that may be provided to the Board include proof of educational pursuits, verifiable employment records, documentation of community service, credible evidence of a substance free lifestyle and certification of non-involvement with civil authorities.

Issues Concerning Bad-Conduct Discharges (BCD ) – Because relevant and material facts stated in a court-martial specification are presumed by the NDRB to be established facts, issues relating to the Applicant’s innocence of charges for which he was found guilty cannot form a basis for relief. With respect to a discharge adjudged by a court-martial, the action of the NDRB is restricted to upgrades based on clemency. Clemency is an act of leniency that reduces the severity of the punishment imposed.

Board Membership: The names and votes of the members of the Board are recorded on the original of this document and may be obtained from the service records by writing to:

 Secretary of the Navy Council of Review Boards
 Attn: Naval Discharge Review Board
 720 Kennon Street SE Rm 309
Washington Navy Yard DC 20374-5023

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